Lawyer for Bin Laden's driver urges curb on Bush's trial powers

WASHINGTON – A lawyer for Osama bin Laden's former driver urged the Supreme Court today to curb President Bush's use of wartime powers to prosecute terror suspects held at a U.S. military base at Guantanamo Bay, Cuba.

Attorney Neal Katyal, who represents Salim Ahmed Hamdan, told justices the military commissions established by the Pentagon on Bush's orders are flawed because they violate basic military justice protections.

"This is a military commission that is literally unburdened by the laws, Constitution and treaties of the United States," Katyal said.

Justices Antonin Scalia and Samuel Alito, the newest member of the court, pressed Katyal to explain why a defendant before a military commission should be given something that defendants in civilian criminal trials normally don't get — the chance to challenge the case before a verdict is reached.

"If this were like a (civilian) criminal proceeding, we wouldn't be here," Katyal said.

Scalia's presence on the bench signaled his rejection of a request to recuse himself that was filed Monday by five retired generals who support Hamdan's arguments. In a letter to the court, the generals asked Scalia to withdraw from participating in the case because of remarks he made in a recent speech in Switzerland about "enemy combatants." Speaking at the University of Freiberg in Switzerland on March 8, Scalia said foreigners waging war against the United States have no rights under the Constitution.

Alito also suggested the justices should wait until Hamdan's trial is over to allow him to question whether charging him with conspiracy violates the laws of war, as Katyal contends.

But Katyal brushed aside the contention. "The government has had four years to get their charges together on Mr. Hamdan," he said.

Hamdan, a Yemeni who was captured in Afghanistan in November 2001, is charged with conspiracy to commit war crimes, murder and terrorism. He claims he is an innocent father of two young daughters and worked as a driver for bin Laden in Afghanistan only to eke out a living for his family.

The Bush administration says he is a trained terrorist who should be tried for war crimes before a special military commission, the first such trial since the aftermath of World War II.

Chief Justice John Roberts, who had voted in the case as a lower court judge, left the bench before arguments began and won't be involved in the decision.

Hamdan is among about 490 foreigners being held as "enemy combatants" at the military prison in Guantanamo Bay. Ten of the men, including Hamdan, have been charged with crimes.

Justices ruled two years ago that the government could detain enemy combatants but not shut off their access to U.S. courts.

In this follow-up case, justices are considering the government's plans for trials before a panel of military officers.

Hamdan also is represented by a military lawyer. In a speech Monday at the Cato Institute, Navy Lt. Cmdr. Charles D. Swift, said he's never sought more than "a full and fair trial" for Hamdan. "When our citizens are abroad and these things are done, how will we say it was wrong?"

Hamdan's trial was halted last fall when a federal judge ruled that he could not be tried by a U.S. military commission unless a "competent tribunal" determined first that he was not a prisoner of war under the 1949 Geneva Convention.

Roberts was on a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit that said the trial could resume, and Hamdan's attorneys appealed to the Supreme Court. Because of the conflict, Roberts removed himself from the case.

The court could dodge a major ruling in the case, on grounds that a new law stripped the justices' authority to consider it. The law passed late last year bars Guantanamo prisoners from filing petitions to fight their detentions, and the administration claims this law retroactively voided hundreds of lawsuits.

The case is Hamdan v. Rumsfeld, 05-184.